Youth Welfare Office as supplementary guardian in the alternating residence model – Requirements for legal expertise in maintenance matters
In the context of family law disputes, the role of the youth welfare office as a supplementary guardian has increasingly come into focus. Especially when parental custody is suspended in certain areas—such as enforcing or calculating child maintenance claims—or when parents remain at odds, the family court may appoint a supplementary guardian. The question of what qualifications this guardian—here specifically the youth welfare office—must possess in relation to the complex subject of child maintenance in a true alternating residence model was recently clarified by a decision of the Higher Regional Court of Zweibrücken (Ref.: 2 UF 28/21).
The alternating residence model and the resulting challenges in maintenance law
While in the classic sole residence model, the primary caregiver and maintenance obligation are clearly distributed, the so-called “true alternating residence model”—almost equally shared care of the child by both parents—requires a differentiated examination of the maintenance obligations. Since maintenance payments must be linked to each parent’s income, calculating child maintenance in these scenarios is particularly complex.
Appointment of the youth welfare office as supplementary guardian
Pursuant to § 1909 BGB, the family court may appoint a supplementary guardian when a person is needed to represent the child in certain matters. In practice, the youth welfare office is regularly considered a suitable institution, as it provides a wide range of services in child and youth welfare. At the same time, however, it faces the challenge of properly handling specific legal and financial issues.
Lack of expertise in calculating maintenance—Importance and limitations
In the case before the OLG Zweibrücken, one party complained that the youth welfare office lacked the necessary expertise in child maintenance matters, particularly regarding complex calculations under the alternating residence model. The court, however, confirmed the general suitability of the youth welfare office as supplementary guardian—even if it had only limited prior experience in the area. This assessment was based on the argument that post-appointment review by the family court provides sufficient protection. Thus, preliminary knowledge—not comprehensive and in-depth familiarity with individual cases—meets statutory requirements.
Legal implications and practical consequences
The decision emphasizes that the primary function of the supplementary guardian—to act in the child’s best interests—does not necessarily require comprehensive detailed knowledge of maintenance law. Rather, a supplementary guardian—especially the youth welfare office as an authority—is expected to seek an appropriate solution within its means and, if necessary, obtain external support for further specific questions. The final control and review of all relevant matters, however, remains with the family court.
Assessment of the judgment and its significance for families concerned
The decision clarifies that German family law relies on institutional flexibility without losing sight of the child’s interests. The appointment of the youth welfare office—even while recognizing deficiencies in maintenance calculations—shows that both legislators and the judiciary prioritize the protection and promotion of the child’s welfare. At the same time, this strengthens the responsibility of the family court to subject the work of the supplementary guardian to substantive review and, if necessary, make corrections.
Outlook: Need for clarification and support options
The role of the youth welfare office as supplementary guardian in maintenance issues within the alternating residence model remains the subject of legal debate and can pose challenges in individual cases—for example, regarding the acceptance by the parents involved and the practical implementation of guardian responsibilities. Particularly in complex situations, ongoing review of the legal framework and the unique circumstances is recommended.
As a nationwide business law firm with broad expertise in corporate, tax, and civil law, the Rechtsanwalt at MTR Legal assist businesses, families, and individuals in all matters concerning guardianship, parental custody, and maintenance. If you require further advice, a non-binding discussion with the contacts at MTR Legal can provide clarity for your specific situation.
Source: OLG Zweibrücken, 2 UF 28/21 – Decision from 20.04.2021. For a comprehensive assessment, it is recommended to consider current developments and case law.
